Acts and Regulations

f-7 - Fatal Accidents Act

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Repealed on 1 March 2013
CHAPTER F-7
Fatal Accidents Act
Repealed: R.S.N.B. 2012, Schedule A
Definitions
1In this Act
“child” includes a son, daughter, grandson, granddaughter, step-son, step-daughter, an adopted child and a person to whom the deceased stood in loco parentis;(enfant)
“deceased” means a person whose death has been caused as mentioned in subsection 2(1);(victime)
“parent” includes a father, mother, grandfather, grandmother, step-father, step-mother, and adoptive parent and a person who stood in loco parentis to the deceased;(parent)
“spouse” includes(conjoint)
(a) a cohabitant to whom the deceased, at the time of his or her death, owed an obligation to provide support under subsection 112(3) of the Family Services Act,
(b) a cohabitant to whom the deceased, at the time of his or her death, would have owed an obligation to provide support under subsection 112(3) of the Family Services Act but for the fact that the cohabitant was not substantially dependent upon the deceased for support, and
(c) a former spouse, including a former cohabitant described in paragraph (a) or (b), to whom the deceased, at the time of his or her death, was providing support or was obliged to provide support;
“tortfeasor” means a person whose wrongful act, neglect, or default has caused the death, or contributed to the cause of the death of the deceased and who, if death had not ensued, would have been liable to him for damages, and includes a person who would have been liable vicariously or otherwise for such damages.(auteur d’un délit civil)
“wife” and “husband” Repealed: 2008, c.45, s.7
1969, c.6, s.2; 1980, c.C-2.1, s.153; 1995, c.39, s.1; 2008, c.45, s.7
Action for wrongful death
2(1)Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable for damages, notwithstanding the death of the deceased, even if the death was caused in circumstances amounting in law to culpable homicide.
Damages for wrongful death
2(2)Subject to subsections (5) and 8(3.1), the liability for damages under this section arises upon the death of the deceased.
Effect of release
2(3)No settlement made, release given or judgment recovered in an action brought by the deceased within a period of three months after the commission or occurrence of the wrongful act, neglect or default causing his death is a bar to a claim made under this Act or is a discharge of liability arising under this Act, but any payment made thereunder shall be taken into account in assessing damages in any action brought under this Act.
Effect of release
2(4)Unless it is set aside, a settlement made or release given, or a judgment recovered in an action brought by the deceased after the expiration of the period mentioned in subsection (3) is a discharge of liability under this Act.
Effect of death of tortfeasor
2(5)If, at the time of the death of the deceased, the tortfeasor is himself dead, the liability arising under this Act shall be conclusively deemed to have been subsisting against the tortfeasor before his death.
Effect of death of tortfeasor
2(6)Where the tortfeasor dies at the same time as the deceased, or in circumstances rendering it uncertain which of them survived the other, or after the death of the deceased, the liability and cause of action arising under this Act shall be conclusively deemed to lie upon and continue against the executor or administrator of the tortfeasor as if the executor or administrator were the tortfeasor in life.
1969, c.6, s.3; 2009, c.L-8.5, s.33
Action for benefit of dependents
3(1)Every action under this Act shall be for the benefit of the spouse, parent, child, brother and sister, or any of them, of the deceased, and except as hereinafter provided, shall be brought by and in the name of the executor or administrator.
Damages to be proportional to pecuniary loss
3(2)Subject to subsection (3), in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought.
Funeral expenses
3(3)Where an action has been brought under this Act there may be included in the damages awarded an amount sufficient to cover the reasonable expenses of the funeral and the disposal of the body of the deceased if those expenses were incurred by any of the persons by whom or for whose benefit the action is brought.
Loss of companionship
3(4)Where an action has been brought under this Act for the benefit of one or more parents of the deceased and the deceased is a child
(a) under the age of nineteen, or
(b) nineteen years of age or over who was dependent upon one or more parents for support,
there may be included in the damages
(c) to the parents, where paragraph (a) applies, or
(d) to the parents upon whom the deceased was dependent, where paragraph (b) applies,
an amount to compensate for the loss of companionship that the deceased might reasonably have been expected to give to the parents and an amount to compensate for the grief suffered by the parents as a result of the death.
Loss of companionship
3(5)An amount included in the damages under subsection (4) shall be apportioned among the parents in proportion to the loss of companionship incurred and grief suffered by each parent as a result of the death.
1969, c.6, s.4; 1986, c.36, s.1; 1995, c.39, s.2; 2008, c.45, s.7
Damages where deceased was contributorily negligent
4(1)Where a person for whose benefit alone or with others an action may be brought under this Act is a tortfeasor, the damages that would otherwise be awarded for his benefit shall be reduced in proportion to the degree in which the court finds that his wrongful act, neglect or default contributed to the cause of the death of the deceased.
4(2)Where the wrongful act, neglect or default of the deceased contributed to the cause of his death, the damages that would otherwise be awarded under this Act shall be reduced in proportion to the degree in which the court finds that his wrongful act, neglect or default contributed to the cause of his death.
1969, c.6, s.5
Appointment of administrator of estate of tortfeasor
5(1)Where, within three months after the death of the tortfeasor
(a) no executor of his will or administrator of his estate has been appointed in the Province, and
(b) no letters probate of his will or letters of administration of his estate have been resealed in the Province,
any person intending to bring or continue an action under this Act may apply to a judge of the court in which the action is to be, or has been, brought to appoint an administrator of the estate of the tortfeasor to act for all purposes of the intended or pending action and as defendant therein; and the judge, on such notice as he may direct, given either specially or generally by public advertisement and to such persons as he may designate, may appoint such an administrator.
Powers of administrator of estate of tortfeasor
5(2)The administrator so appointed is an administrator against whom an action under this Act may be brought or continued and by whom such action may be defended; and the administrator may bring any action or take any proceeding in respect of the action that the tortfeasor could have brought or taken if he were alive.
Judgment against administrator of estate of tortfeasor
5(3)Any judgment obtained by or against the administrator so appointed has the same effect as a judgment in favour of or against the tortfeasor or the executor of his will or the administrator of his estate.
Extension of limitation period
5(4)No application shall be made under subsection (1) by a person barred from bringing an action under this Act because of the expiration of a period set out in paragraph 8(4)(a) or (b), but where such an application is made not earlier than 3 months before the expiration of that period, the judge may, if he or she thinks it just to do so, extend for a period not exceeding one month the time within which an action may be brought as provided in subsection 8(4).
1969, c.6, s.6; 2009, c.L-8.5, s.33
Commencement of Action
6(1)Where there is no executor or administrator of the estate of the deceased, or there being an executor or administrator no action is brought by him, within six months after the death of the deceased, an action may be brought by and in the name or names of any one or more of the persons for whose benefit the action would have been brought if it had been brought by the executor or administrator.
Commencement of Action
6(2)Every action so brought shall be for the benefit of the same persons as if it were brought by the executor or administrator.
Action, adding plaintiffs
6(3)Where an action is brought under this Act but has not been set down for trial within six months after it was begun, the statement of claim in the action and all subsequent proceedings therein may, on application, be amended by substituting or adding as plaintiff, all or any of the persons for whose benefit the action was or should have been brought.
Award of punitive or exemplary damages to be for benefit of estate
6(4)Notwithstanding section 3 and subsection (2), where an action is brought under this section in relation to a death occurring on or after January 1, 1993, exemplary or punitive damage may be awarded in appropriate cases, but if such damages are awarded, they shall be for the benefit of the estate of the deceased.
1969, c.6, s.7; 1992, c.58, s.1
Damages, amounts to be disregarded
7In assessing damages in an action brought under this Act there shall not be taken into account:
(a) any sum paid or payable on the death of the deceased under any contract of insurance or assurance, whether made before or after the coming into force of this Act;
(b) any premium that would have been payable in future under any contract of insurance or assurance if the deceased had survived;
(c) any benefit or right to benefits, resulting from the death of the deceased, under the Workers’ Compensation Act, or the Social Welfare Act, or the Family Services Act or under any other Act that is enacted by any legislature, parliament, or other legislative authority and that is of similar import or effect;
(d) any pension, annuity or other periodical allowance accruing payable by reason of the death of the deceased;
(e) any amount that may be recovered under any statutory provision creating a special right to bring an action for the benefit of persons for whose benefit an action may be brought under this Act.
1969, c.6, s.8; 1981, c.80, s.29; 1982, c.3, s.27; 1987, c.6, s.29
Action, only one action
8(1)Only one action lies under this Act in respect of the death of the deceased.
Notice of action
8(2)Except where it is expressly declared in another Act that it operates notwithstanding this Act, it is not necessary that any notice of claim or intended claim, or notice of action or intended action or any other notice, or any other document, be given or served, as provided in any such other Act, or otherwise, before bringing an action under this Act.
Effect of bars to action against deceased
8(3)If the deceased, at the time of his death, could not have brought an action against the tortfeasor by reason of failure to comply with any statutory or contractual condition, a person entitled to bring action under this Act is not, solely by reason of that fact, barred from so doing.
Effect of bars to action against deceased
8(3.1)If the deceased, at the time of his or her death, could not have brought an action against the tortfeasor by reason of lapse of time, a person who, if not for this subsection, would be entitled to bring an action under this Act is barred from doing so.
Limitation period
8(4)Except where it is expressly declared in another Act that it operates notwithstanding this Act and subject to subsection 5(4), an action, including an action to which subsection 2(5) or (6) applies, shall not be brought under this Act after the earlier of
(a) two years from the day on which the person bringing the action first knew or ought reasonably to have known that the wrongful act, neglect or default of the tortfeasor caused the death or contributed to the cause of death of the deceased, and
(b) five years from the day of the death of the deceased.
Limitation period, not affected by contract
8(5)This section has effect notwithstanding any contract.
1969, c.6, s.9; 2009, c.L-8.5, s.33
Payment into court
9The defendant may pay into court one sum of money as compensation for his wrongful act, neglect or default to all persons entitled to damages under this Act, without specifying the shares into which, or the parties among whom it is to be divided under this Act.
1969, c.6, s.10
Statement of claim and statement of particulars
10(1)In every action brought under this Act,
(a) the statement of claim shall contain, or the plaintiff shall deliver therewith, full particulars of the names, addresses and occupations of the persons for whose benefit the action is brought, and
(b) the plaintiff shall file with the statement of claim an affidavit in which he shall state that to the best of his knowledge, information and belief, the persons on whose behalf the action is brought as set forth in the statement of claim or in the particulars delivered therewith are the only persons entitled, or who claim to be entitled, to the benefit of the action.
10(2)Where the plaintiff fails to comply with subsection (1), the court, on application, may order the plaintiff to give such particulars or so much thereof as he is able to give; and the action shall not be tried until he complies with the order but the failure of the plaintiff to comply with subsection (1) or with an order made under this subsection is not a ground of defence to the action, or a ground for its dismissal.
10(3)A judge of the court in which the action is brought may dispense with the filing of an affidavit, as required in subsection (1), if he is satisfied that there is sufficient reason for doing so.
1969, c.6, s.11
Apportionment of damages
11Where the amount recovered has not been otherwise apportioned, a judge in chambers may apportion it among the persons entitled thereto.
1969, c.6, s.12
Power of judge to decide all questions
12Where an action is brought under this Act, a judge of the court in which the action is pending may make such order as he may deem just for the determination of all questions as to the persons entitled under this Act to share in the amount, if any, that may be recovered.
1969, c.6, s.13
Crown bound by Act
13Her Majesty in Right of New Brunswick or in any other right is bound by this Act.
1969, c.6, s.14
N.B. This Act is consolidated to March 1, 2013.